Shafia trial jurors face the choice of four lifetimes

Christie Blatchford in Kingston — It is trite law that there’s a world of difference between the minor offences of following too closely and leaving the scene of an accident — even one in which people died — and multiple charges of murder.

But stripped to the bare bones, this is the stark choice facing jurors in the notorious “honour killing” trial now winding to a close here.

After hearing lawyers’ final arguments and instructions on the law from Ontario Superior Court Judge Robert Maranger, the seven women and five men of the jury retired Friday to consider the fate of Mohammad Shafia, his wife Tooba Mohammad Yahya and their eldest son Hamed.

Once a sprawling clan of 10 — one husband, two wives and seven children strong — the family is originally from Afghanistan. They came to Canada in 2007 as business class immigrants after stints in Pakistan, Dubai and Australia, and settled in Montreal.

The parents and son are pleading not guilty to four counts each of first-degree murder in the June 2009 drowning deaths of almost half their numbers.

Found dead in a submerged black Nissan at the picturesque Kingston Mills locks that morning were Zainab, Sahar and Geeti, respectively 19, 17 and 13, and the 52-year-old woman who was like a second mother to them, Rona Amir Mohammad, Shafia’s other wife.

Basically, jurors were left with two radically different versions of what happened and two findings that are poles apart: Tragic car accident, which equals acquittal, or homicide made to look like a crash, which equals conviction and life in prison.

To buy the accident theory, jurors first would have to believe that Shafia and Yahya were never at the Kingston Mills scene that night and that as far as the parents knew for a long time, neither had Hamed nor the family Lexus SUV.

That’s what the parents, now 58 and 42, have said repeatedly in police interviews and in their lengthy testimony here, though Yahya once briefly acknowledged all three of them had been at the locks that night — then immediately recanted it.

To find the two were telling the truth about this, jurors would have to look past dozens of inconsistencies in the parents’ testimony, their collective vagueness on critical aspects of it, the outright lies they admitted telling police and the savage way Shafia in particular spoke about his daughters, just weeks after their deaths, in private conversations wiretapped by Kingston police and played here.

But the greatest leap the jurors must make to acquit the trio is that they would have to accept the curious jailhouse “confession” Hamed made to Moosa Hadi, a fellow Afghan and amateur sleuth hired by Shafia on the sly.

The 94-page transcript of that three-hour-long interview, conducted Nov. 7, 2009, at the Quinte Detention Centre and recorded by Hadi, is the pillar upon which the trio’s entire defence really rests.

It was in this chat that Hamed purportedly admitted for the first time that after the family had arrived at the Kingston East Motel in the wee hours of the morning of June 30, he spotted his sisters and Rona Amir Mohammad heading out for a spin in the Nissan, tried to dissuade them and then decided to tag behind in the Lexus to keep an eye on them.

In his haste, he claimed to have followed the Nissan too closely — tailgated, which in Ontario is a Highway Traffic Act offence — and to have tapped it on the bumper when the car came to a sudden stop.

Then, he said, as he was out in the dark, inspecting the damage and believing his sisters were about to turn the Nissan around, he heard a splash.

After making cursory efforts to see if anyone had survived, Hamed said he then got back into the Lexus and drove away without calling police or anyone else: Thus, failing to stop at the scene of an accident, an offence under the Criminal Code, albeit not one with which he is charged here.

And for four-plus months, Hamed said, he kept the terrible secret, even as the family buried their dead.

Yahya claimed at trial to have learned of this shocking development only at the trio’s preliminary hearing, and said Hamed should have told them both.

Shafia wasn’t asked about his son’s new story while he was in the witness stand.

But as the only substantive explanation on record, from any of the three, for the presence of the Lexus at Kingston Mills on the evening of June 29 and early morning of June 30 — it is an incontestable fact it was there — the Moosa Hadi interview is the linchpin of the accident theory.

The interview was held at the Quinte jail, in nearby Napanee, where the three were held after their July 22 arrests.

By then, Hadi knew that much had to be explained.

Now about 30 (like many Afghan men, he gave only the year of his birth, 1982, when he was asked), then a second-year mining engineering student at Queen’s University, he had a natural interest in the case and had followed developments in the news. That August, he said, he read in the local Kingston paper that Peter Kemp, Shafia’s lawyer, was having trouble finding translators to help him communicate with his client.

As Kemp put it in a recent interview, “He (Hadi) spoke the language and he was from Kabul.”

Up until that point, he said, the only translators he had found were Iranians, and as he told Postmedia News, Shafia, with his Afghan-centric view of the world, had made it crystal clear that, “’There was no f—ing way I want an Iranian.’”

So Hadi was hired, signed a confidentiality agreement with Kemp and David Crowe, who represents Yahya, and soon was off to the jail with Kemp to meet Shafia.

He knew immediately, Hadi said, that something was off about the case and that the wrong people were in jail.

And when he went for a second visit, without Kemp, the two Afghans struck a secret side deal whereby Hadi would investigate to “find the truth.”

For this, he was paid — he said it was for expenses — a total of $4,500 by Shafia.

His first order of business was to see what he called “the evidences” against the three, and he asked Shafia to get permission from Kemp to do that.

As a result, on Oct. 6 of 2009, Moosa Hadi — engineering student, in Canada for only five years and with not a whit of investigative training under his belt — had in his hands a hard drive of what is known as “Crown disclosure,” every scintilla of evidence prosecutors had to that point disclosed to defence lawyers of the police investigation.

It included the trio’s videoed police interviews, their incriminating wiretapped conversations after the deaths, witness statements and, perhaps most critically, a preliminary report from analyst John Stefaniak at Ontario’s Centre of Forensic Sciences in Toronto.

It was on July 3 that Kingston Police Constable Rob Etherington, a crime-scene expert, had what is arguably the “Eureka!” moment of the investigation.

By then, police knew that Hamed had lied to them about at least one critical thing.

In his first police interview on June 30 — about the same time he and his parents were reporting the four women and the Nissan missing at the Kingston police station, the car was being hoisted from the bottom of the locks, and all three were gently questioned as the grieving relatives they were assumed to be — Hamed said he’d driven the Lexus back to Montreal that same night, ostensibly on business.

But he failed to mention that just hours later that very morning, he had been involved in a bizarre single-car crash with a barrier in a near-empty parking lot.

He’d even called Montreal police to report the accident, which is how Kingston detectives learned about it so quickly.

In a second interview on June 30, Hamed explained the omission by saying he was afraid if he told the police “you’d go tell my dad” he’d damaged the Lexus.

So there was Const. Etherington, examining pieces of broken Lexus headlight which had been recovered from the Shafias’ house after police learned of the parking lot accident and got Shafia’s permission to search the car.

As he was trying to fit the broken pieces together, Const. Etherington said there seemed to be a couple missing, so he looked at the pieces of plastic which had been found at Kingston Mills and were presumed to be from the Nissan’s broken tail light.

He noticed that lines in two of the plastic bits from the accident scene seemed to be the same as lines in those found at the Montreal house.

As Const. Etherington testified at trial, what he thought was, “Those pieces shouldn’t match, according to the story we knew (that the Lexus had never been at the locks). Something was going on that we didn’t know about yet.”

He sent the pieces off to the lab at Ontario’s Centre of Forensic Sciences, where Stefaniak, in an Aug. 26 preliminary report, confirmed the match.

This was later re-iterated in a final report, but Stefaniak’s preliminary findings were in the disclosure Hadi had received.

The self-appointed sleuth, meantime, had also obtained for himself “professional visitor” status at the jail, which meant that, like lawyers, he could meet inmates confidentially in private rooms.

He’d had Crowe write the Quinte centre on his behalf.

Thus equipped, Hadi visited Shafia and Yahya with his hard drive of Crown disclosure and his laptop.

On one level, he was on the level, for as far as the lawyers knew, he was working for them translating documents from Farsi/Dari to English or English to Farsi/Dari.

(For the record, Farsi and Dari are essentially the same languages, their differences akin to those between British and American English. The words were used interchangeably at trial.)

But Hadi was also playing detective for money, and “reviewing” the evidence with the accused couple.

He also had a theory and decided he should also see Hamed.

Hadi had also offered his services to Clyde Smith, a local lawyer who at the time was representing Hamed.

But as Smith had as his client the only fluent English speaker of the three, he didn’t need an interpreter.

He never replied to Hadi’s email.

This didn’t deter Hadi.

Four or five times he met Hamed at the detention centre, the second-last time on Nov. 6. Hadi did with the young man just what he had done with his parents, as he put it in court, “show them what police had against them.”

He began the interview on Nov. 7 by referring to their discussion the day before, in which he said Hamed had told the police “things that do not correspond with reality.”

He then began what was essentially a monologue, with Hamed usually injecting only grunted murmurs of assent.

Hadi went over the story he said Hamed told him the day before, what he called “the program that we charted last night” (though at trial, he was quick to tell prosecutor Gerard Laarhuis, who suggested the Nov. 6 go-through had been a dry run for Nov. 7, “I didn’t mean like that”).

He played portions of Yahya’s interview, notably where she briefly admitted all three had been at the locks, and excerpts of the wiretaps, where Shafia luridly cursed his dead daughters.

By the most conservative estimate, it was Hadi, not Hamed, who did at least 80 per cent of the talking on the tape — professing his belief in the family’s innocence and spewing his contempt for the police (particularly the Farsi-speaking, Iranian-born RCMP Inspector Shahin Mehdizadeh, who interrogated both Shafia and Yahya) until at last, about two-thirds of the way through the interview, Hadi got to the point.

“And anyway,” he told Hamed, “last night was a very, very . . . it was a night in which I was extremely upset, but I got a bit of relief because I heard what the truth was.”

“Yes,” replied Hamed.

“I heard you saying that when they (the four dead women) left with the car, it was at the same time that you also departed. You were both present at the scene at side of the rock where the accident occurred between the Lexus car and Nissan . . .”

“Yes,” said Hamed.

“This is where some particles of Lexus car fell on the ground and after that, the Nissan car got stuck, and after it got loose . . .”

“Umm,” said Hamed.

Hadi then said, by way of encouragement, that “Hamed is hundred per cent innocent in this part.”

“Yes,” Hamed replied.

“He is hundred per cent innocent,” Hadi said.

“Yes,” said Hamed

“The only sin that Hamed has is that after the incident or accident, he hasn’t declared the truth,” Hadi said.

“Yes, yeah,” said Hamed.

He made Hamed promise to “confess all the truth step by step because I am certain that the truth is your support, the law in supporting you.”

“Yes,” said Hamed.

And so it went, Hadi frequently reminding Hamed of what he’d said the night before and heavy-handedly spoon-feeding him tidbits for Hamed to repeat.

For instance, at one point Hadi said helpfully, “you were standing (by the canal) and calling ‘Zainab, Sahar, Rona?’

“Yes,” Hamed said.

“Geeti,” Hadi added.

“Yes,” said Hamed.

(From the mouth of Hamed’s trial lawyer, Patrick McCann, this became in his closing address to the jurors Hamed having run towards the car and “called their names.”)

On another occasion, Hadi was eliciting from Hamed how, when he heard the splash of the Nissan entering the water, he’d been picking up pieces of the damaged Lexus head light.

“So you put all those pieces of Lexus, which you had them in your hand, you put them somewhere . . .” he said.

“Yes,” Hamed said.

“Close to the scene,” Hadi offered.

“Umm,’ said Hamed.

“Where the Nissan car has fallen, you put them with your hand?”

“Yes,” said Hamed.

He then explained how he returned to the Lexus to get a rope, which he said he dangled in the water, but nothing happened.

This was an absolutely chilling detail, for included in the Crown disclosure the two had gone over was a witness statement from a boy, then eight, whose family lived at Kingston Mills and whose home overlooked the accident scene.

The boy had got up for a drink of water on the night of June 30, heard a “splash kind of crash” noise, and went out to the back deck, where, he said, all he could see in the dark was the outline of two vehicles and heard “a bit of a horn.”

The boy wasn’t called to testify at the trial.

But Hamed remembered well the statement police had taken from him.

“He says that he heard it (a horn) for five seconds,” he told Hadi in a rare and for him garrulous moment. “I sounded it once. I realized that there was nobody there.”

Hamed told Hadi he stayed at the scene for 15 or 20 minutes before leaving for Montreal.

“Did it come to your mind to, let’s say, make a phone call for the police to come?” Hadi asked.

“Yes, yeah,” Hamed said, but he “was scared and changed my mind. I decided with myself not to say that I was with them.”

In Montreal, he told Hadi, he staged the fake crash in the near-empty parking lot, or as Hamed put it on the tape, “so I took the Lexus and hit to a post a bit.”

He returned to Kingston, driving the family’s Pontiac Montana mini van, soon after his father phoned purportedly to tell him the girls were missing.

Hadi then turned the discussion back to the “Lexus pieces.”

He asked if, when he returned to pick them up, this as his sisters by Hamed’s account would have been drowning, Hamed thought “that you have forgotten some pieces there or not?”

“As far as I know,” Hamed said.

“They were too small you didn’t see them,” Hadi said. “They were small pieces?”

“Yes,” Hamed replied.

“It was too dark you couldn’t see,” Hadi said. “Maybe you have left some of them.”

“Yeah, maybe I left some of them,” Hamed replied.

The interview ended with Hadi, very pleased with himself, rebuking Hamed for his silence and the pain he caused his parents but ultimately pronouncing, “OK, for now, you are not guilty in my eyes, I mean not guilty of murder.” He promised to tell Hamed’s parents “the problem of the truth would be clarified” on his next visit to them.

Five days later, he turned over the audio tape of the interview to Kingston police, and a little later sent them two reports he’d written on his investigation. It was evident he expected the three would be sprung from jail as soon as police revealed the fruits of his investigation.

As he left the detention centre after his interview with Hamed, the young man thanked him, and Hadi replied, “Don’t mention it. Wish you good health. This is my job.”

But it wasn’t, of course, and Hadi was the furthest thing from a fair or impartial investigator.

He was temporarily in the employ of and being paid by Shafia. He had used his special status as an interpreter to get the Crown disclosure and then shared every lick of it with the three accused people, including one, Hamed, he didn’t even have permission to see, and in the result, Hamed’s new story just happened to be a perfect match with that disclosure. He had gone behind the backs of the two lawyers who were paying him as a translator.

And, as Judge Maranger said once during the absence of the jurors, Hadi had “a clear agenda. No one can deny it; he’s vociferous about it.”

He was also persistent.

After testifying, Hadi returned once to the courtroom until the prosecutor objected to his presence, said there was a chance he could be recalled to the witness stand, and the judge asked him to leave.

Then Hadi began an email campaign, sending at least four notes addressed to “Dear officer” and copied to the lawyers and some of the journalists covering the trial (to the latter, he sent a fifth, offering an interview, with his phone number).

In these notes, he variously railed at the prosecutors, claimed to be suffering post-traumatic stress disorder, and said that when two years earlier he said the trio would be acquitted, “it was not because of predictive power, rather it was because of my truthful, responsible, careful, extensive and lawful investigation.”

There are other evidentiary hurdles — among them cellphone tracking which appears to show the trio scouted the Kingston Mills area beforehand; damning Google searches about murder in the days before the deaths; testimony from a dozen independent witnesses that the three girls and Rona Amir Mohammad feared for their lives and the searing wiretaps — but only if the jurors concur with Hadi’s modest assessment could they reach a verdict of not guilty.

Hamed Mohammad Shafia never testified.

Asked why he didn’t put his client on the stand, McCann declined to discuss it, except to note that “there are always many reasons why.”

Almost certainly, the biggest one would be named Moosa Hadi, the man who set out to free three fellow Afghans and ended up merely tightening the net around them.